There are three lawsuits working at the same time concerning the High-Speed Rail project. The Prop 1A civil case (Tos/Fukuda/Kings County suit), the Validation action and the Atherton Appeals case, an environmental suit, are linked in many ways. The bond validation suit is up next and will be heard this Friday September 27th if in fact it happens.
The Atherton Appeal case:
The defendants (Town of Atherton et al.) in the validation case contend there is a link to the nearly five-year old environmental suit known as the Atherton case, now before the California court of appeal. They say the Validation case shouldn’t be heard until the preemption issue in the Atherton case is resolved. The High-Speed Rail Authority are the Plaintiffs in the Validation case since they brought the suit to the courts.
A quick refresher: The Atherton case was about to be heard by an appeals court in September when the Attorney General’s (AG) office claimed that the involvement of the Surface Transportation Board (STB) preempts the California Environmental Quality Act (CEQA) so the appeal should be dismissed for lack of jurisdiction
Now the Atherton appeals case is the subject of a September 20th filing of the defendants in the Validation case who are requesting that the judge delay the Validation suit for a very interesting reason.
They say “if the Court of Appeal finds that CEQA review of California’s High-Speed Rail Project is preempted under the Interstate Commerce Commission Termination Act, then the condition precedent set in Streets & Highways Code §2704.08(c)(2)(K), that all project-level environmental clearances must have been completed prior to the California High-Speed Rail Authority approving and submitting a funding plan for a corridor of the high-speed rail system, or usable segment thereof, cannot be fulfilled.
Consequently, the conditions precedent for expenditure of bond funds approved by California’s voters towards construction of any corridor or usable segment thereof also cannot be complied with and the bond approval itself must therefore be voided on the basis of impossibility. It would, under those circumstances, be a waste of the Court’s time to continue to consider Plaintiffs’ action seeking validation of their authorizations for issuance of those bonds.”
So to translate they say, let’s wait until the preemption issue in the Atherton appeals case is resolved since if the High-Speed Rail Authority wins the point that CEQA is superseded by federal law because of the Surface Transportation Board ruling, then the Prop1A bond measure could be null and void. This would dramatically change the issues in the Validation case. There would be no need to sell bonds since the voters can’t get what they voted for. Of course, perhaps the HSR Authority might decide to keep CEQA intact despite their right to skip it if they win the preemption issue in order to avoid voiding Proposition1A and the bond measure with it.
We’ll see what the court says about delaying the hearing of the Validation case. It was always was a concern that the Validation case would be heard prior to the remedies hearing of the Prop 1A suit set for November 8th. The thinking is if the project was significantly delayed or even halted, there would be no need to validate the bonds.
Brief to the Appellate Court for the Atherton appeals case:
Around the same time, September 16th, the plaintiffs sent this brief to the appellate court in the Atherton case explaining why federal preemption doesn’t apply. Note this case was originally heard by none other than Judge Michael Kenny and was appealed to the higher court. It was primarily about the mystery around the ridership model. In their brief they make the following points:
· The plaintiffs are perplexed that the AG’s office, the chief legal officer within California’s executive branch of government is seeking to undermine the enforcement of CEQA one of the most significant environmental laws enacted by California’s legislative branch.
· It also says that the AG’s office is late to the table with this argument, it should have been presented at the original hearing and not at the appellate level.
· They make the point that” California’s voters have affirmatively chosen to apply CEQA to the project and specifically conditioned receipt of $9 billion in state bond funds upon CEQA compliance. This mandate, specific to Respondent [Authority] and dictated by the California electorate, its ultimate legislative body, is independent of any other general requirement for CEQA compliance. While the STB may have preemptive authority over railroad operations, it has no authority over the ability of California’s voters to condition the use of bond funds on specific performance requirements.”
· It also states that CEQA is informational and aids in the ultimate decision-making. “It does not in itself either approve or reject a project.”
· “Respondent (HSR Authority) is itself the applicant to the STB for approval of its own project. No permit or regulation is involved. Thus Respondent is acting, not as a public agency attempting to regulate a private third party, but as the proprietor of an enterprise, albeit a publicly owned and financed enterprise, making decisions about its own rail program. The case law is abundantly clear that in such a situation the state agency falls under the market participant exception to federal preemption doctrine.”
While there was always a real possibility that the judge in the Validation case, Judge Michael Kenny (who is also the judge in the Prop1A case), will see value in delaying the Validation hearing because of the pending remedies hearing in the Prop 1A case scheduled for October 8th. But now the defendants in the Validation case offer another reason for delay, namely the preemption issue in the Atherton appeal. We’ll see what the court does.
Now all three cases appear to be connected--a tangled web is now spun. While legal hearings are usually pretty dry, these cases offer drama and in many respects tread on unexplored grounds.
See the TRANSDEF’s commentary with links to all the briefs filed in these cases. Title of the Blog commentary is, "Hoisted on their own petard". Translation: Origin Shakespeare. Bottom line: Suffering from the fate intended for your enemies.
After you get to the site and read the short commentary, look on the left side, click on high-speed rail and you will find all litigation briefs.
I have written several recent articles on the lawsuits. See them on my site: http://www.examiner.com/transportation-policy-in-san-francisco/kathy-hamilton